STATE OF NEW JERSEY VS. CHRISTOPHER J. CHRISTIE (16-1945, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3549-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER J. CHRISTIE,
Defendant-Respondent.
_________________________________
Argued September 18, 2018 – Decided November 5, 2018
Before Judges Yannotti, Rothstadt and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Municipal Appeal No. 16-
1945.
Donald F. Burke argued the cause for appellant William
J. Brennan.
William P. Miller, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
respondent State of New Jersey (Dennis Calo, Acting
Bergen County Prosecutor, attorney; John J. Scaliti,
Legal Assistant, on the brief).
Kevin H. Marino argued the cause for respondent
Christopher J. Christie (Marino, Tortorella & Boyle,
PC, attorneys; Craig Carpenito, on the brief).
PER CURIAM
In this appeal, we are asked whether under the unique circumstances of
this case, a private citizen has standing to seek the court's appointment of an
independent special prosecutor to pursue a citizen-complaint once probable
cause has been determined. We conclude that such standing does not exist.
Accordingly, we affirm the Law Division's order determining that the
complainant in this case did not have standing to seek that relief.
This matter arose out of a citizen-complaint filed by William J. Brennan
under Rule 7:2-2(a)(1). That rule provides in pertinent part:
Citizen Complaint. A Complaint-Warrant . . . or a
summons charging any offense made by a private
citizen may be issued only by a judge or, if authorized
by the judge, by a municipal court administrator or
deputy court administrator of a court with jurisdiction
in the municipality where the offense is alleged to have
been committed within the statutory time limitation.
The complaint-warrant . . . or summons may be issued
only if it appears to the judicial officer from the
complaint, affidavit, certification or testimony that
there is probable cause to believe that an offense was
committed, the defendant committed it, and a
Complaint-Warrant or summons can be issued.
[Rule 7:2-2(a)(1).]
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In accordance with the Rule, Brennan filed a complaint in Fort Lee
alleging defendant, former governor Christopher J. Christie, committed an act
of second-degree official misconduct, N.J.S.A. 2C:30-2(b), that was related to
the incident that has become known as "Bridgegate." The complaint stated that
defendant committed an act of official misconduct when he "refrained from
ordering that his subordinates take all necessary action to re-open local access
lanes to the George Washington Bridge."
The matter was transferred from Fort Lee to the Municipal Court for
Vicinage II (Bergen County), and that court scheduled the matter for a probable
cause hearing. Prior to the hearing, then-Attorney General, Christopher S.
Porrino, and then-Bergen County Prosecutor, Gurbir S. Grewal, recused
themselves from individually participating in the matter. Responsibility for the
matter was turned over to a First Assistant County Prosecutor (FACP). At the
hearing on October 13, 2016, the municipal court judge did not permit either
defendant or his counsel to participate and after considering evidence presented
by Brennan, the judge determined that there was probable cause for the
complaint's filing and referred the matter to the Bergen County Prosecutor's
Office (BCPO).
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On October 19, 2016, Brennan filed an emergent motion before the Law
Division to disqualify the Office of Attorney General (OAG) and all county
prosecutors due to an alleged conflict of interest, and for the appointment a
special prosecutor. On December 2, 2016, Judge Bonnie J. Mizdol issued an
order, accompanied by a written opinion, denying Brennan's motion because as
a civilian complainant, he lacked standing to pursue the application for a special
prosecutor. She found that Brennan's "role in this matter concluded at the end
of the probable cause hearing." Relying on Rule 3:25-1(a), and Rule 3:23-9,
Judge Mizdol determined that after the matter was "turned over to the [BCPO],
[it] possesse[d] sole authority regarding whether or not to pursue the matter
further." The judge concluded that "[b]ased upon Brennan's lack of standing,
[she was] precluded from entertaining the substantive issue[s]" of his arguments.
Brennan moved for reconsideration and on December 23, 2016, Judge
Mizdol issued an order and written opinion denying the motion. The judge
found that Brennan failed to "put forth any case law, statute, rule, regulation, or
constitutional provision" justifying his application.
In the meantime, on November 2, 2016, defendant filed a motion in the
Law Division for leave to file an interlocutory appeal of the municipal court
judge's finding of probable cause. On January 12, 2017, Judge Mizdol issued
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an order and written opinion granting defendant's motion for leave to appeal, but
denying his motion to dismiss the complaint with prejudice. She remanded the
matter to the municipal court for a new probable cause hearing because
defendant's counsel was not permitted to participate at the first hearing.
Prior to the new probable cause hearing, on January 27, 2017, the FACP
wrote a nine-page letter to Judge Mizdol as required by Rule 3:25-1(a),
explaining that his office did "not intend to pursue the charges against defendant
based on [its] review of the evidence and [its] ethical obligations." According
to the FACP, based on his office's investigation, "[the] charge cannot be proven
beyond a reasonable doubt." Notwithstanding the BCPO's determination, on
February 2, 2017, the municipal court judge conducted a new probable cause
hearing. Due to the BCPO's decision not to pursue the charges against
defendant, and despite Judge Mizdol's reason for remanding, defendant's
counsel waived his right to appear at the hearing and the matter proceeded
without defendant's participation.
At the hearing, Brennan again moved for the appointment of a special
prosecutor. The municipal court judge denied the request, stating: "the problem
that I have with . . . Brennan's request is the same that Judge Mizdol had, namely
that we can't let witnesses decide who will prosecute cases, and that is . . .
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Brennan's status, he is a witness for the State." The judge reserved the issue of
probable cause until February 16, 2017, when he rendered an oral decision
finding again that there was sufficient probable cause for a complaint -summons
to issue against defendant.
Brennan appealed the municipal court judge's denial of his motion to
appoint a special prosecutor. 1 He also sought referral of the matter to a grand
jury, alleging that the prosecutor's refusal to prosecute was an abuse of his
discretion. In response, the FACP wrote to Judge Mizdol, informing her that his
office had "administratively dismissed the . . . complaint" against defendant and
its "review of the transcript of the municipal court judge's February 2017
probable cause finding provides no additional insights or bases which would
warrant the [BCPO] taking a different tack."
On March 17, 2017, Judge Mizdol issued an order, accompanied by a nine-
page written decision, affirming the municipal court judge's denial of Brennan's
request to appoint a special prosecutor. Judge Mizdol observed that Brennan's
appeal was actually a motion for reconsideration of her earlier order and denied
that relief. The judge ruled that Brennan's lack of standing was a "settled legal
1
Brennan evidently also filed a separate petition seeking the appointment of an
independent special prosecutor. A copy of the petition was not included in his
appendix.
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issue" in the case and she would "not consider the merits of [his] standing . . .
for yet a third time." Judge Mizdol also denied Brennan's request to refer the
matter to the grand jury. She stated:
While the court remains forever mindful of the
heightened concern for conflict when a governor is
facing criminal prosecution by the very state he is
tasked to govern, it rejects Brennan's argument that
[the] BCPO abused its prosecutorial discretion. This
court is satisfied that [the] BCPO has, to avoid an actual
or perceived appearance of impropriety, designated a
prosecutor not appointed by [defendant] or his
administration, who has unbridled discretion to present
the charges to a grand jury, downgrade the charges to a
lesser offense or dismiss the charges. R. 3:25-1[(a)].
There is nothing in the record to suggest [the] BCPO
arbitrarily dismissed the complaint in lieu of
conducting a thorough investigation and soundly
exercising its discretion to dismiss.
....
The court is satisfied that [the] BCPO exercised its
duties in good faith and with sound discretion, carefully
examining available evidence, the law, and the facts.
The judge also addressed Brennan's argument that "declining to prosecute
a charge where a probable cause finding has been made is 'reasonably' perceived
by the public as impropriety, warranting the appointment of a special
prosecutor." The judge stated the following about Brennan's contention:
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This argument neglects the distinction between the
threshold proofs sufficient to sustain a finding of
"probable cause" and those required to sustain the
"beyond a reasonable doubt" burden of proof. In its
detailed March 2, 2017, letter notifying the court of its
decision to administratively dismiss the complaint,
[the] BCPO reasoned that it does not believe that it can
prove the charge of official misconduct beyond a
reasonable doubt. The court finds the BCPO's
representation of inability to meet this highest burden
of proof to be a valid justification for administrative
dismissal, as a "prosecutor should not . . . permit the
continued pendency of criminal charges in the absence
of sufficient admissible evidence to support a
conviction."
[citation omitted.]
This appeal followed.
In his appeal from Judge Mizdol's last order, Brennen argues that the
"appearance of partiality" mandated the appointment of a "special
prosecutor . . . in order to maintain public confidence in the administration of
justice." According to Brennan, "[i]n order to give meaning to Rule 7:2-2(a)(1),
a citizen must be afforded the right to seek [the] appointment of an independent
special prosecutor when the prosecutor making the decision as to whether to
proceed with the case once probable cause is found has an indisputable
conflict[.]" Brennan avers that "a special prosecutor must be appointed in order
to maintain public confidence in the administration of justice[.]" Relying on In
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re Thirty-Fifth Statewide Investigating Jury, 112 A.3d 624 (Pa. 2015), a
Pennsylvania case, he argues that "[o]ther States have recognized the inherent
or implied power of the judiciary to preserve and protect the proper
administration of justice" by appointing a special prosecutor. Brennan also
contends that he has standing to seek the appointment under Rule 7:2-2(a)(1)
and that this appeal has not been rendered moot by the FACP's decision not to
pursue a prosecution because the determination "was tainted by the conflict
[Brennan is seeking] to be eliminated."
A trial court's determination about standing is a legal issue, subject to our
de novo review. "The issue of standing [and a trial judge's interpretation of the
law] present[] . . . legal question[s] subject to [this court's] de novo review."
Courier-Post Newspaper v. Cty. of Camden, 413 N.J. Super. 372, 381 (2010)
(citations omitted).
We have considered Brennan's contentions under our de novo standard of
review and in light of the record and the applicable legal principles. We
conclude that his contentions are without merit. We affirm substantially for the
reasons expressed by Judge Mizdol in her thoughtful and comprehensive written
decisions. We add only the following comments.
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At the outset, we observe that Brennan did not have standing to appeal
any of the municipal court's decisions to the Law Division or appeal from Judge
Mizdol's orders. See State v. Bradley, 420 N.J. Super. 138, 142 (App. Div.
2011). As a citizen complainant, Brennan's role was limited to that "of the
victim or concerned citizen[,]" or witness "report[ing] knowledge of criminal
activities to the proper law enforcement authorities." In re Loigman, 183 N.J.
133, 139 (2005). Other than as a possible witness, a citizen complainant has no
further role in the criminal process. Once a judicial officer determines the
existence of probable cause to issue a complaint or summons, it is the prosecutor
who reviews the complaint, under Rule 3:2-1, and determines "whether the
charges merit presentation to the grand jury or, alternatively, outright dismissal
or downgrade to the municipal court." Id. at 144. "The complainant has no right
to appeal" the dismissal of a criminal complaint, State v. Vitiello, 377 N.J.
Super. 452, 455 (App. Div. 2005), and cannot "act as a prosecuting attorney [for
purposes of appeal] without the special approval and process provided in Rule
3:23-9(d)" that are not applicable here. Bradley, 420 N.J. Super. at 142.
Even if Brennan had standing, the premise of his argument for the
appointment of a special prosecutor is incorrect. Contrary to Brennan's
argument, there was no incurable conflict presented by the BCPO continuing to
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represent the interests of the State after the County Prosecutor recused himself.
There is no authority for the recusal of a county prosecutor's office or for finding
an appearance of conflict if a county prosecutor recuses himself or herself and
the members of the office continue to perform their obligations as prosecutors
in the same matter. See State v. Harvey, 176 N.J. 522, 531 (2003) (refusing to
disqualify an entire prosecutor's office based on the conflict of a single
prosecutor); State v. Irizarry, 271 N.J. Super. 577, 591 (App. Div. 1994) ("We
have found no case that stands for the proposition that an entire prosecutor's
office should be disqualified because some members of the office are [faced
with a conflict].")
Also, there is no authority in this State for a court to appoint a special
prosecutor under the circumstances here. Brennan's reliance on In re Thirty-
Fifth Statewide Investigating Jury, in support of his contention that the judiciary
has the ability to appoint a special prosecutor is inapposite. First, this court is
not bound by out-of-state case law. See Abel Holding Co. v. Am. Dist. Tel. Co.,
147 N.J. Super. 263, 271 (App. Div. 1977). Second, that case involved the
court's attempt to protect the integrity of the grand jury process under its
supervision, pursuant to specific legislation, when it was confronted with a need
to investigate Pennsylvania's Attorney General because there were reasonable
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grounds to believe that she may have compromised grand jury secrecy. In re
Thirty-Fifth Statewide Investigating Jury, 112 A.3d at 625. As the Pennsylvania
Supreme Court recognized in that case, the facts presented there were
distinguishable from a situation where, as here, a litigant seeks the
"displacement of a non-conflicted . . . official from the performance of his
duties." Id. at 631.
In any event, the court in that case was not asked to address the issue of a
citizen-complainant's standing to seek the appointment of a special prosecutor
under the present circumstances, which the municipal court judge, Judge
Mizdol, and we have now found Brennan lacked in this case.
Affirmed.
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